Citation Nr: 1312833 Decision Date: 04/17/13 Archive Date: 05/02/13 DOCKET NO. 09-50 087 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Chicago, Illinois THE ISSUE Entitlement to service connection for non-malignant tumors, to include as due to herbicide exposure. REPRESENTATION Appellant represented by: Illinois Department of Veterans Affairs WITNESS AT HEARING ON APPEAL Veteran ATTORNEY FOR THE BOARD L. Kirscher Strauss, Counsel INTRODUCTION The Veteran served on active duty from September 1964 to August 1968. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a December 2006 rating decision issued by the Department of Veterans Affairs (VA) Regional Office (RO) in Chicago, Illinois. In May 2012, the Veteran testified at a video conference hearing before the undersigned. A transcript of the hearing is of record. In September 2012, the Board remanded the claim to the RO via the Appeals Management Center (AMC) for additional development. The development has been completed and the case is before the Board for final review. FINDINGS OF FACT 1. The Veteran served in Vietnam during the Vietnam era and is presumed to have been exposed to herbicides (to include Agent Orange) during service. 2. Competent and probative evidence of record fails to establish that the post-service non-malignant tumors are related to active service, to include as due to exposure to herbicides. CONCLUSION OF LAW The criteria for establishing service connection for non-malignant tumors, to include as due to exposure to herbicides, have not been met. 38 C.F.R. §§ 1110, 1116, 5107 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.303, 3.307, 3.309 (2012). REASONS AND BASES FOR FINDINGS AND CONCLUSION VCAA The Veterans Claims Assistance Act of 2000 (VCAA), Pub. L. No. 106-475, 114 Stat. 2096 (Nov. 9, 2000) (codified at 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5106, 5107, and 5126 (West 2002 & Supp. 2012)) redefined VA's duty to assist a claimant in the development of a claim. VA regulations for the implementation of the VCAA were codified as amended at 38 C.F.R. §§ 3.102, 3.156(a), 3.159, and 3.326(a) (2012). The notice requirements of the VCAA require VA to notify a claimant 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). The requirements apply to all five elements of a service connection claim: veteran status, existence of a disability, a connection between a veteran's service and the disability, degree of disability, and effective date of the disability. Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006). VCAA notice must be provided to a claimant before the initial unfavorable decision on a claim for VA benefits by the agency of original jurisdiction (in this case, the RO, to include the AMC). Id.; see also Pelegrini v. Principi, 18 Vet. App. 112 (2004). However, insufficiency in the timing or content of VCAA notice is harmless if the errors are not prejudicial to the claimant. See Conway v. Principi, 353 F.3d 1369, 1374 (Fed. Cir. 2004) (holding that VCAA notice errors are reviewed under a prejudicial error rule). In this case, in an August 2006 letter the RO provided notice to the Veteran regarding what information and evidence was needed to substantiate his claim for service connection, as well as what information and evidence must be submitted by the Veteran and what information and evidence will be obtained by VA. The letter also advised him of how disability evaluations and effective dates are assigned and the type of evidence that impacts those determinations. The case was last adjudicated in January 2013. The record reflects that VA has made reasonable efforts to obtain relevant records adequately identified by the Veteran, including his service treatment records, post-service private treatment records, VA examination reports and medical opinions, and lay statements and hearing testimony. The Board also notes that actions requested in the prior remand have been undertaken. Here, a supplemental medical opinion was obtained regarding the etiology of the Veteran's current non-malignant tumors, diagnosed as verrucoid keratosis and sebaceous cysts. The opinion included an explanation as to why it was found in the July 2009 VA medication opinion that there was no indication that the Veteran had one of the rare syndromes associated with multiple sebaceous cysts. Thus, the Board finds that the prior remand directives have been substantially complied with, and a decision on the merits can proceed. See D'Aries v. Peake, 22 Vet. App. 97 (2008) (holding that only substantial, and not strict, compliance with the terms of a Board remand is required pursuant to Stegall v. West, 11 Vet. App. 268 (1998)). VA has considered and complied with the VCAA provisions discussed above. The Veteran was notified and aware of the evidence needed to substantiate the claim, the avenues through which he might obtain such evidence, and the allocation of responsibilities between the Veteran and VA in obtaining such evidence. The Veteran was an active participant in the claims process by submitting evidence and argument. Therefore, he was provided with a meaningful opportunity to participate in the claims process and has done so. Any error in the sequence of events or content of the notice is not shown to have affected the essential fairness of the adjudication or to cause injury to the Veteran. Pelegrini, 18 Vet. App. at 121. Therefore, any such error is harmless and does not prohibit consideration of this matter on the merits. See Conway, 353 F.3d at 1374, Dingess, 19 Vet. App. 473; see also ATD Corp. v. Lydall, Inc., 159 F.3d 534, 549 (Fed. Cir. 1998). Criteria & Analysis 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; 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). 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). A veteran is entitled to a presumption of service connection if he is diagnosed with certain enumerated diseases associated with exposure to certain herbicide agents if he served in the Republic of Vietnam during a prescribed period. 38 U.S.C.A. § 1116; 38 C.F.R. §§ 3.307, 3.309. A veteran who, during active military, naval, or air service, served in the Republic of Vietnam during the period beginning on January 9, 1962, and ending on May 7, 1975 shall be presumed to have been exposed during such service to an herbicide agent, unless there is affirmative evidence to establish that the veteran was not exposed to any such agent during that service. 38 C.F.R. § 3.307(a). VA's Secretary has determined that a presumption of service connection based on exposure to herbicides used in the Republic of Vietnam during the Vietnam era is not warranted for any condition for which the Secretary has not specifically determined a presumption of service connection is warranted. See 67 Fed. Reg. 42600-42608 (2002); see also 75 Fed. Reg. 81332 (2010). 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. Combee v. Brown, 34 F.3d 1039 (Fed. Cir. 1994). The Veteran contends that a tumor removed from the back of his ear and a tumor removed from an index finger during military service were related to his current post-service tumors. On enlistment examination in June 1964 and on examination in September 1965, clinical evaluation of the skin was reported as normal, and identifying body marks were limited to scars and tattoos. An April 1968 treatment record during service in Vietnam reflects the Veteran's complaint of a boil behind his ear. It was identified as a sebaceous cyst and removed. He returned to the dispensary in Vietnam in June 1968 requesting to have the right side of his face checked. Tetracycline was prescribed for seven days and he was directed to return for cyst removal. A June 1968 follow-up note indicated that the Veteran had a small sebaceous cyst on the right side of his cheek that was treated with Tetracycline for infection. He was directed to apply heat packs and return to the dispensary daily. On separation examination in August 1968, clinical evaluation of the skin was reported as normal and identifying body marks included scars. An October 1999 post-service private pathology report indicated that a tissue specimen was obtained from the Veteran's right arm. The diagnosis was benign verrucoid keratosis, suggestive of old verruca vulgaris. The Veteran's claim for service connection was received in June 2006. On his application, he indicated that the claimed non-malignant tumors disability began in 1980. In his April 2007 notice of disagreement after the denial of his claim, he stated that he had a growth removed from the back of one of his ears at a dispensary in Vietnam and had another growth removed from an index finger at the Swedish American Hospital while home on leave. A March 2008 response from the Swedish American Hospital indicated that there was no medical record information for the Veteran and/or for the dates of treatment requested. The Veteran was afforded a VA skin diseases examination in May 2009. He stated that he noticed a small, round, hard area just behind his right ear in 1965. It was removed shortly thereafter and diagnosed as a sebaceous cyst. He recalled that in the late 1970s, he had a similar round, tough lesion on his breast bone that was removed. Also, just two months ago he had two cysts removed from his back right shoulder blade. He indicated that the round, hard areas were all diagnosed as sebaceous cysts, they were tender before removal, but now the only tender area was remaining indentation at his breast bone. He stated that the cysts came up very slowly over the course of months and that there had been no other cysts since the ones two months ago. He reported that he was aware of no diagnosis of other skin diseases. He added that the cysts had not reoccurred after their removal. The Veteran indicated that there were no systemic symptoms, no fevers or chills, no weight loss, and no evidence of malignancy. Reported physical examination findings, including of the right forearm, posteriorly on the right ear, chest, and shoulder blade, did not include current cysts. Following a review of the claims file and physical examination, the diagnosis was verrucoid keratosis of the right arm and sebaceous cysts of the posterior right ear, the midline distal chest anteriorly, and the right posterior lateral back status post excision. The examining physician opined that it was less likely than not that the verrocoid keratosis was related to the sebaceous cysts as these are two separate skin conditions and do not cause or aggravate the other. Another VA medical opinion was provided in July 2009 that addressed whether the post-service sebaceous cysts of the chest and of the right posterior back [shoulder blade] were related to the in-service treatment for sebaceous cysts in April 1968 and in June [1968]. The reviewing physician opined that the sebaceous cysts on the anterior lower chest and back were not related to the sebaceous cysts in the military because these are not recurrences of a cyst treated in the military. The physician explained that sebaceous cysts are very common and that almost all individuals will have a sebaceous cyst or several in their life, but may not even notice them unless the cyst becomes infected. She stated that sebaceous cysts are usually small and not treated unless they become infected or the individual requests excision for cosmetic reasons. She explained that if a cyst is drained and not removed it can recur. She elaborated that one cyst does not cause another cyst and that she would only relate a new sebaceous cyst to a prior sebaceous cyst if there was a syndrome of multiple sebaceous cysts. The physician stated that there are rare syndromes with multiple recurrent cysts, but there was no indication that the Veteran had one of the rare syndromes. In May 2012 the Veteran testified that he had one cyst removed from his hand in service, one removed from behind his ear approximately two years later in Vietnam, and one cyst removed from his chest after service. Because neither the May 2009 nor the July 2009 VA medical opinion contained an opinion regarding the relationship, if any, to the Veteran's exposure to herbicides in Vietnam, and in order to seek clarification regarding "no indication" that the Veteran had a rare syndrome associated with multiple recurrent cysts, VA obtained another medical opinion. In December 2012 a VA physician indicated that she reviewed every single piece of paper in the claims file and opined that there was no relationship between exposure to Agent Orange and the development of verrucoid keratoses and no relationship between exposure to Agent Orange and the development of sebaceous cysts. The physician reasoned that the skin disorder that is associated with Agent Orange exposure is chloracne, and chloracne is a distinctly different skin disorder from verrucoid keratoses and from sebaceous cysts. She explained that chloracne does not cause or evolve into verrucoid keratoses or sebaceous cysts. Verrucoid refers to warts, which are viral in etiology; keratoses refer to irritation of the skin, which could be from any etiology. She explained that a sebaceous cyst is a walled off collection of sebum (oils of the skin), which can occasionally get infected with bacteria. The reviewing physician also addressed the statement by the July 2009 VA physician that there was no indication that the Veteran had one of the rare syndromes of recurrent cysts. The December 2012 physician explained that there was no evidence or indication that the Veteran had a rare disorder such as neurofibromatosis (multiple skin lesions associated with neurologic abnormalities), pyogenic granuloma, angiolipoma, or any other skin abnormalities. The physician indicated that in reviewing all of the records, it has repetitively been stated that he does not have any of these abnormalities, benign or malignant, other than the few sebaceous cysts that have been removed and other than the biopsied verrucoid keratoses. In subsequent correspondence the Veteran stated that he wanted any VA examination that was required to be scheduled at the Madison, Wisconsin VA medical center. The Board finds that the May 2009 VA examination and VA medical opinions provide sufficient medical information to decide the claim, and an additional examination is not required. The Board has considered the medical and lay evidence of record, but concludes that service connection for non-malignant tumors, to include as due to herbicide exposure, is not warranted. The Veteran's service in the Republic of Vietnam has been verified and he is presumed to have been exposed to herbicides (to include Agent Orange) during service. Despite any assertions that the claimed sebaceous cysts or benign verrucoid keratosis disability is associated with exposure to herbicides, neither sebaceous cysts nor verrucoid keratoses, in fact, are not included in the list of diseases associated with exposure to herbicides. See 38 U.S.C.A. § 1116 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.307, 3.309. Therefore, entitlement to service connection for these non-malignant tumors is not warranted on a presumptive basis due to herbicide exposure. 38 C.F.R. §§ 3.307, 3.309. However, the Board will still consider the claim on a direct basis. Initially, the Board acknowledges that the Veteran is competent to describe symptoms or the appearance of sebaceous cysts or verrucoid keratosis such as small, round, hard areas on his skin. See Barr v. Nicholson, 21 Vet. App. 303 (2007). However, 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, diagnosing skin diseases and determining the etiology of such 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). Thus, the Board accords significantly greater probative value to the medical evidence and opinions of record than to the Veteran's lay assertions on these points. The only medical opinions to address the question of whether the Veteran's non-malignant tumors, diagnosed as sebaceous cysts and benign verrucoid keratosis, are related to service, including the April 1968 and June 1968 sebaceous cysts, were from the May 2009, July 2009, and December 2012 VA physicians. The Board finds that each of these opinions is probative evidence against the claim for service connection because each was based on a review of the claims file (and examination of the Veteran in May 2009) and supported by an articulated medical rationale that was consistent with the medical and lay evidence of record. See Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 302-04 (2008) (holding that it is the factually accurate, fully articulated, sound reasoning for the conclusion that contributes to the probative value of a medical opinion). Collectively, these physicians explained that the post-service benign verrucoid keratosis on the right arm and sebaceous cysts on the midline distal chest anteriorly were not related to military service, including the April 1968 and June 1968 sebaceous cysts, because (1) verrucoid keratoses and sebaceous cysts were separate, unrelated skin conditions; (2) the post-service cysts were not recurrences of the in-services cysts; (3) there was no indication that the Veteran had one of the rare syndromes of recurrent cysts because there was no evidence or indication that he had neurofibromatosis, pyogenic granuloma, angiolipoma, or any other skin abnormalities; and (4) neither sebaceous cysts nor benign verrucoid keratoses are associated with exposure to herbicides. In conclusion, the Board finds there is no basis upon which to conclude that non-malignant tumors, to include post-service sebaceous cysts and benign verrucoid keratosis, are related to military service. See 38 C.F.R. §§ 3.303, 3.307, 3.309. Therefore, service connection for non-malignant tumors is not warranted. For the foregoing reasons, the claim for service connection for non-malignant tumors, to include as due to exposure to herbicides, must be denied. In arriving at the decision to deny the claim, the Board has considered the applicability of the benefit-of-the-doubt doctrine. However, as the preponderance of the evidence is against the claim, that doctrine is not applicable. See 38 U.S.C.A. § 5107(b); 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49, 53-56 (1990). ORDER Service connection for non-malignant tumors, to include as due to exposure to herbicides, is denied. ____________________________________________ Thomas H. O'Shay Acting Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs