Citation Nr: 1314935 Decision Date: 05/06/13 Archive Date: 05/15/13 DOCKET NO. 05-00 219 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Atlanta, Georgia THE ISSUE Entitlement to service connection for recurrent cysts, claimed as soft tissue sarcoma. REPRESENTATION Appellant represented by: Disabled American Veterans WITNESSES AT HEARING ON APPEAL The Veteran and his spouse ATTORNEY FOR THE BOARD Tiffany Berry, Associate Counsel INTRODUCTION The Veteran served on active duty from May 1968 to April 1970. This matter comes before the Board of Veterans' Appeals (Board) on appeal from an August 2004 rating decision issued by the Department of Veterans Affairs (VA) Regional Office (RO) in Oakland, California. Jurisdiction has since been transferred to the RO in Atlanta, Georgia. The Veteran also perfected an appeal of his claim seeking service connection for a skin disorder of his right foot. However, as an August 2006 rating decision granted the benefit sought, that issue is no longer in appellate status. The Veteran testified at a hearing before the undersigned Veterans Law Judge in September 2011. A transcript of those proceedings has been associated with the Veteran's claims file. In February 2012, the Board remanded this claim for additional development and consideration. All requested actions have been completed and the claim is once again before the Board. Finally, the Board also notes that, in addition to the paper claims file, there is a paperless, electronic claims file associated with the Veteran's claim. A review of the documents in such file reveals that they are potentially relevant to the issue on appeal. Thus, any future consideration of this Veteran's case should take into account the existence of this electronic record. FINDING OF FACT The credible medical evidence of record does not indicate a link between the Veteran's recurrent cysts and his military service. CONCLUSION OF LAW The Veteran's recurrent cyst disorder was not incurred in or aggravated by his military service. 38 U.S.C.A. §§ 1110, 1131, 5107 (West 2002); 38 C.F.R. §§ 3.102, 3.303 (2012). REASONS AND BASES FOR FINDING AND CONCLUSION I. Veterans Claims Assistance Act The Veterans Claims Assistance Act (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 the appellant 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 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, the VA will attempt to obtain. 38 C.F.R. § 3.159(b) (2012). The 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). 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). 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. Conway v. Principi, 353 F.3d 1369, 1374 (Fed. Cir. 2004) (VCAA notice errors are reviewed under a prejudicial error rule). In this case, letters dated in November 2003, April 2006, and March 2006 provided notice to the Veteran regarding what information and evidence was needed to substantiate his claim for service connection for recurrent cysts, including informing him of what information and evidence must be submitted by the Veteran and what information and evidence will be obtained by VA. The March 2006 letter also advised the Veteran of the evidence needed to establish a disability rating and effective date for the claim on appeal. The case was last readjudicated in March 2013. The record also reflects that VA has made reasonable efforts to obtain relevant records adequately identified by the Veteran. Specifically, the information and evidence that have been associated with the claims file include the Veteran's service treatment records, service personnel records, VA treatment records, reports of the May 2004 VA examination, and July 2004 and March 2012 opinions. Additionally, the prior February 2012 remand instructions were substantially complied with concerning this claim. Instructions pertinent to the claim being decided included obtaining additional VA treatment records, and obtaining a supplemental opinion to the May 2004 VA examination. In response, the RO attempted to obtain VA treatment records from 1970 to 1974, and obtained current VA treatment records through February 2012, which have been associated with the Veteran's virtual claims file. Further, a supplemental opinion to the May 2004 VA examination was obtained in March 2012. Thus, the Board finds that there has been substantial compliance with the prior remand instructions and no further action is necessary. 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)). In September 2011, the Veteran was afforded a hearing before a Veterans Law Judge (VLJ) in which he and his wife presented oral arguments in support of his claim. In Bryant v. Shinseki, 23 Vet. App. 488 (2010), the United States Court of Appeals for Veterans Claims (Court) held that 38 C.F.R. § 3.103(c)(2) (2012) requires that the VLJ who chairs 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 VLJ asked questions directed at identifying whether the Veteran met the criteria for service connection. The VLJ did not specifically seek to identify any pertinent evidence not currently associated with the claims. This was not necessary, however, because the Veteran volunteered his treatment history and described his relevant symptoms since service. Accordingly, the Veteran is not shown to be prejudiced on this basis. 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 Board hearing. By contrast, the hearing focused on the elements necessary to substantiate the claim, and the Veteran, through his testimony, demonstrated that he had actual knowledge of the elements necessary to do so. As discussed above, the VCAA provisions have been considered and complied with. The Veteran was notified and aware of the evidence needed to substantiate this claim, the avenues through which he might obtain such evidence, and the allocation of responsibilities between himself and VA in obtaining such evidence. The Veteran has been an active participant in the claims process by reporting for VA examinations, responding to notices, and submitting evidence and argument. Thus, the Veteran has been provided with a meaningful opportunity to participate in the claims process and has done so, and the Board may proceed with a decision. II. Service Connection The instant appeal stems from the Veteran's claim specifically seeking service connection for soft tissue sarcoma pursuant to the provisions of 38 C.F.R. § 3.309(e), which allows service connection for this disease for Veterans who are presumed to have been exposed to certain herbicides during their Vietnam service. While the Veteran's DD Form 214 and personnel records reflect his service in the Republic of Vietnam, as will be discussed below, the record fails to reflect that he has been diagnosed with soft tissue sarcoma. The Board acknowledges that the Veteran submitted a VA treatment record with a "problem list" including a diagnosis of soft tissue sarcoma; however the record reflects that this diagnosis was entered by the Veteran's VA examiner the day after the Veteran's May 2004 VA examination. As the examination was performed to determine whether the Veteran did indeed have soft tissue sarcoma, and the examiner failed to diagnosis the Veteran with this condition, this entry appears to have been a typographical or other administrative error. Furthermore, in a July 2004 addendum to this examination, a VA physician confirms that the Veteran does not have a diagnosis of soft tissue sarcoma. Therefore, the Board will consider the Veteran's entitlement to service connection on a direct basis, as opposed to a presumptive basis under 38 C.F.R. § 3.309(e). For the reasons that follow, his claim shall be denied. Service connection may be granted if it is shown the Veteran suffers from a disability resulting from an injury sustained or a disease contracted in the line of duty during active military service, or for aggravation during service of a pre-existing condition beyond its natural progression. 38 U.S.C.A. §§ 1110, 1131, 1153; 38 C.F.R. §§ 3.303, 3.306. To establish entitlement to service connection, there must be: (1) competent and credible evidence confirming the Veteran has the claimed disability; (2) competent and credible evidence of in-service incurrence or aggravation of a relevant disease or injury; and (3) competent and credible evidence of a nexus or link between the in-service injury or disease and the current disability. Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004), citing Hansen v. Principi, 16 Vet. App. 110, 111 (2002). See also Barr v. Nicholson, 21 Vet. App. 303 (2007). The Veteran's service treatment records reflect that a "neurofibroma" of his left arm was excised during service, and the Veteran is currently service-connected for the residuals of this excised left arm cyst. There are no additional indications of a skin disorder during his military service. Following service, VA treatment records dated in October 2003, reflect that the Veteran had two cysts from his back excised, which were determined to be a granular cell tumor and a lipoma. Thereafter, the Veteran was afforded a VA examination, conducted by a nurse practitioner, in May 2004 with regard to his claim. The VA examiner provided a diagnosis of neurofibroma on the left upper arm and granular tumor to low back. He specifically noted that no diagnosis of soft tissue sarcoma was provided. However, the examiner indicated a medical opinion concerning a relationship between the Veteran's current diagnoses and benign or malignant soft tissue sarcoma was being deferred until a physician could review the Veteran's claims file. In July 2004, a physician reviewed the claims file. The physician stated that a granular cell tumor, otherwise called myoblastoma (or myoblastic myoma) is an uncommon neoplasm, but a benign solitary tumor, treated by excision. The physician stated that since the etiology of this tumor is not known, it is not possible to ascribe an etiology of the origin to service. However, this opinion does not address the question of whether the Veteran's current cysts are the manifestation of a chronic disease (such as neurofibromatosis) that was first treated during service. VA treatment records dated in March 2007 also note the Veteran was treated for removal of a granular cell tumor in the right groin region. In February 2012, the Board remanded this claim for an etiological opinion as whether it is at least as likely as not that any current cysts or the Veteran's presentation more generally regarding the existence of cysts, reflects the manifestation of a chronic condition that had its initial onset in service. In March 2012, this requested opinion was provided by a VA physician. The VA physician reviewed the Veteran's claims file, noted the in-service treatment for a lesion on the arm in February 1970; on the back in 2003; and, in the groin area in 2007. However, in direct response to the question presented by the Board, it was determined that the skin lesion removed from the Veteran's arm in 1970 has no relationship to the lesions found on his back and in the groin area in 2003 and 2007, respectively. The Board notes that the only evidence in support of the Veteran's claim is his own substantiated beliefs that his current skin disorder is due to his military service. Lay witnesses are competent to provide testimony or statements relating to symptoms or facts that the lay witness observed and is within the realm of his or her personal knowledge, but not competent to establish that which would require specialized knowledge or training, such as medical expertise. The Board acknowledges that the Veteran is competent to give evidence about what he has experienced, i.e., in this case, that he has experienced recurrent skin cysts. Specifically, during the Veteran's 2011 Board hearing, he testified that he has multiple similar cysts during and since service. However, as a layman without proper medical training and expertise, he is not competent to provide probative medical evidence on a matter such as the diagnosis or etiology of a specific skin disorder. For example, he is not competent to state that his currently diagnosed skin disorder is the result of his in-service skin lesion. There is simply no competent evidence of a nexus between the Veteran's current skin disorder and his active service. The Veteran's VA treatment providers have not found that there is a causal link between his disorder and his active service. To the extent that the Veteran contends that such a link exists, the Board again finds that he is not competent to do so. In this regard, it also should be noted that the Veteran's service treatment records reflect considerable attention was paid to the Veteran's left arm cyst, among other medical complaints. They show no complaint about recurring skin cysts, and he specifically denied ever experiencing skin diseases or other illness other than those already noted, when he was examined in connection with his service discharge. Likewise, his skin was specifically characterized as normal when he was clinically evaluated shortly before his service discharge. These contemporary records are considered far more probative evidence of the Veteran's condition in service, than his current contention that he experienced recurring cysts in service. Thus, the Board does not consider current contentions of the presence of recurrent cysts since service to be credible. Under these circumstances, a basis upon which to grant service connection for a skin disorder has not been presented. For these reasons and bases, the Board finds that the preponderance of the evidence is against the Veteran's claim of entitlement to service connection. And inasmuch as the preponderance of the evidence is against this claim, there is no reasonable doubt to resolve in his favor, and the claim must be denied. See 38 U.S.C.A. § 5107(b); 38 C.F.R § 3.102. ORDER The claim of service connection for recurrent cysts is denied. ____________________________________________ MICHAEL E. KILCOYNE Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs