Citation Nr: 1315154 Decision Date: 05/08/13 Archive Date: 05/15/13 DOCKET NO. 12-09 971 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Cleveland, Ohio THE ISSUES 1. Entitlement to service connection for a skin disability. 2. Entitlement to service connection for a bilateral foot disability. 3. Entitlement to service connection for a left knee disability. 4. Entitlement to service connection for sleep apnea. 5. Entitlement to service connection for diabetes mellitus type 2 (diabetes). REPRESENTATION Appellant represented by: Veterans of Foreign Wars of the United States ATTORNEY FOR THE BOARD N. Snyder, Counsel INTRODUCTION This appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c) (2012). The Veteran had active service from February 1953 to September 1954. This appeal comes before the Board of Veterans' Appeals (Board) from a decision of February 2011 by the Department of Veterans Affairs (VA) Regional Office (RO) in Cleveland, Ohio. The Veteran was scheduled for a Board hearing at the RO in January 2012. He failed to appear for the hearing without explanation. He has not requested that the hearing be rescheduled. Therefore, his request for a Board hearing is deemed withdrawn. The record before the Board consists of the Veteran's paper claims files and an electronic file known as Virtual VA. FINDINGS OF FACT 1. Onychomycosis and dermatophytosis were not present in and are not etiologically related to service. 2. A foot or skin disability, other than onychomycosis and dermatophytosis, has not been present during the pendency of the claim. 3. A left knee disability was not present in and is not etiologically related to service. 4. Sleep apnea was not present in and is not etiologically related to service. 5. Diabetes was not present until more than one year following the Veteran's discharge from service and is not etiologically related to service. CONCLUSIONS OF LAW 1. The criteria for service connection of a skin disability have not been met. 38 U.S.C.A. § 1110 (West 2002); 38 C.F.R. § 3.303 (2012). 2. The criteria for service connection of a bilateral foot disability have not been met. 38 U.S.C.A. § 1110 (West 2002); 38 C.F.R. § 3.303 (2012). 3. The criteria for service connection of a left knee disability have not been met. 38 U.S.C.A. §§ 1101, 1110, 1112 (West 2002); 38 C.F.R. §§ 3.303, 3.307, 3.309 (2012). 4. The criteria for service connection of sleep apnea have not been met. 38 U.S.C.A. § 1110 (West 2002); 38 C.F.R. § 3.303 (2012). 5. The criteria for service connection of diabetes have not been met. 38 U.S.C.A. §§ 1101, 1110, 1112 (West 2002); 38 C.F.R. §§ 3.303, 3.307, 3.309 (2012). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS Duties to Notify and Assist The Veterans Claims Assistance Act of 2000 (VCAA), codified in pertinent part at 38 U.S.C.A. §§ 5103, 5103A (West 2002 & Supp. 2012), and the pertinent implementing regulation, codified at 38 C.F.R. § 3.159 (2012), provide that VA will assist a claimant in obtaining evidence necessary to substantiate a claim but is not required to provide assistance to a claimant if there is no reasonable possibility that such assistance would aid in substantiating the claim. They also require VA to notify the claimant and the claimant's representative, if any, of any information, and any medical or lay evidence, not previously provided to the Secretary that is necessary to substantiate the claim. As part of the notice, VA is to specifically inform the claimant and the claimant's representative, if any, of which portion, if any, of the evidence is to be provided by the claimant and which part, if any, VA will attempt to obtain on behalf of the claimant. The Board also notes the United States Court of Appeals for Veterans Claims (Court) has held that the plain language of 38 U.S.C.A. § 5103(a) (West 2002), requires that notice to a claimant pursuant to the VCAA be provided 'at the time' that or 'immediately after' VA receives a complete or substantially complete application for VA-administered benefits. Pelegrini v. Principi, 18 Vet. App. 112, 119 (2004). The timing requirement enunciated in Pelegrini applies equally to the initial-disability-rating and effective-date elements of a service-connection claim. Dingess v. Nicholson, 19 Vet. App. 473 (2006). The RO provided the appellant with all required notice in letters sent in October 2009 and April 2010, prior to the initial adjudication of the claims. VA has obtained service treatment records and all available VA treatment records, assisted the appellant in obtaining evidence, and afforded the appellant the opportunity to give testimony before the Board. All known and available records relevant to the issues on appeal have been obtained, and the appellant has not contended otherwise. The Board acknowledges that the Veteran was not provided a VA examination and no VA medical opinion was obtained in response to any of his claims. No such examination or opinion is needed, however. 38 C.F.R. § 3.159(c)(4). With regard to the claims of service connection for a bilateral foot and skin disability, although the record contains competent evidence of the current presence of dermatophytosis and onychomycosis, the probative evidence does not suggest the existence of dermatophytosis or onychomycosis in service or exposure to an herbicide agent during service or indicate that the dermatophytosis or onychomycosis may be associated with service, and the record does not contain competent evidence of any other diagnosed skin or foot disability or symptoms of disability during the appellate period or during service. With regard to the claim for service connection for a left knee disability, although the record contains competent evidence of the current presence of osteoarthritis, the probative evidence does not suggest that existence of an event, injury or disease affecting the left knee during service, the presence of arthritis of the left knee during the year following the Veteran's discharge from service or indicate that the left knee disability may be associated with service. With regard to the claim for service connection for sleep apnea, although the record contains competent evidence of the current presence of sleep apnea, the probative evidence does not suggest that the sleep apnea began during service or indicate that it may be associated with service. With regard to the claim for service connection for diabetes, although the record contains competent evidence of the current presence of diabetes, the probative evidence does not suggest the presence of diabetes until more than one year after the Veteran's discharge from service or exposure to an herbicide agent during service or indicate that the diabetes may be associated with service Accordingly, the Board will address the merits of the claims. Legal Criteria Service connection may be established for disability resulting from personal injury suffered or disease contracted in the line of duty in the active military, naval, or air service. 38 U.S.C.A. § 1110; 38 C.F.R. § 3.303. Service connection may be granted for any disease initially diagnosed after discharge, when all the evidence, including that pertinent to service, establishes the disease was incurred in service. 38 C.F.R. § 3.303(d). Service connection may also be granted for chronic disorders, such as arthritis and diabetes, when manifested to a compensable degree within one year of separation from service. 38 U.S.C.A. §§ 1101, 1112; 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 Vietnam era, shall be presumed to have been exposed during such service to a 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)(6)(iii). A veteran who, during active military, naval, or air service, served between April 1, 1968, and August 31, 1971, in a unit that, as determined by the Department of Defense, operated in or near the Korean DMZ in an area in which herbicides are known to have been applied during that period, shall be presumed to have been exposed during such service to an herbicide agent, unless there is affirmative evidence to show that the Veteran was not exposed to any such agent during that service. 38 C.F.R. § 3.307(a)(6)(iv) . Presumptive service connection on the basis of herbicide exposure is authorized for specified diseases. 38 U.S.C.A. § 1116; 38 C.F.R. § 3.309. Diabetes is among the disease specified. Onychomycosis, dermatophytosis, sleep apnea, and arthritis are not. When a claimed disorder is not included as a presumptive disorder, direct service connection may nevertheless be established by evidence demonstrating that the disease is related to service, to include the in-service herbicide exposure. See Combee v. Brown, 34 F.3d 1039 (Fed. Cir. 1994). Except as otherwise provided by law, a claimant has the responsibility to present and support a claim for benefits under laws administered by the Secretary. The Secretary shall consider all information and lay and medical evidence of record in a case before the Secretary with respect to benefits under laws administered by the Secretary. When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, the Secretary shall give the benefit of the doubt to the claimant. 38 U.S.C.A. § 5107 (West 2002); 38 C.F.R. § 3.102 (2012); see also Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990). To deny a claim on its merits, the evidence must preponderate against the claim. Alemany v. Brown, 9 Vet. App. 518, 519 (1996), citing Gilbert, 1 Vet. App. at 54. Skin and Bilateral Foot Disabilities Service treatment and examination records reflect no findings or histories indicative of a skin or foot disability. Dermatophytosis of the nails/onychomycosis, was diagnosed in October 1996. See VA "problem list." Subsequent VA treatment records suggest that the conditions have persisted since that time. Post-service medical records do not reflect any additional abnormal findings or histories related to the feet. They do reflect treatment for other skin abnormalities, namely, herpes neuralgia in August 2001, a skin tag and skin lesion which appeared to be actinic keratosis in January 2002, chondrodermatitis nodularis helicia, "folliculitis vs. eczema," and junctional lentiginous nevus with mild cytologic atypia in October 2006, and a choroidal nevus in September 2007. Service connection is not warranted for onychomycosis or dermatophytosis because the preponderance of the evidence shows that neither was present in service and neither is related to service. Initially, the Board finds the competent evidence does not suggest that onychomycosis or dermatophytosis was present in service. The service treatment and examination records, to include the August 1954 temporary retirement examination record, reflect no findings or histories suggestive of the either disability, and the record suggests the onychomycosis/dermatophytosis was not noted until more than 42 years after military service, though the Veteran received medical treatment and underwent VA examinations during that time. See Maxson v. Gober, 230 F.3rd. 1330, 1333 (Fed. Cir. 2000) (time elapsed prior to initial complaint can be considered as evidence against the claim.). Furthermore, the Veteran has not reported the existence of symptoms suggestive of onychomycosis or dermatophytosis during service, though he is competent to do so. The competent evidence also does not suggest that the onychomycosis or dermatophytosis is related to service. The Board acknowledges that the Veteran believes it is due to in-service herbicide exposure while he was stationed in Korea. Onychomycosis and dermatophytosis are not conditions subject to presumptive service connection based on exposure to herbicide agents, however, and the record does not include any probative evidence linking the dermatophytosis or onychomycosis to the reported herbicide exposure. There are no medical findings or studies of such a link, and the evidence does not suggest the Veteran possesses the specialized knowledge necessary to render him competent to attribute the dermatophytosis or onychomycosis to the reported exposure. See Davidson v. Shinseki, 581 F.3d 1313, 1316 (Fed. Cir. 2009); see also Barr v. Nicholson, 21 Vet. App. 303 (2007). Thus, the Veteran's statement is not probative evidence of a link between the onychomycosis or dermatophytosis and service. Moreover, the probative evidence does not indicate that the Veteran was exposed to an herbicide agent during service. Although the Veteran is competent to report where he served during his military service, the Board finds his history of service in Korea is not credible, and thus, not probative because it is contradicted by the service records: the service treatment and examination records do not reflect any notations suggestive of foreign service (such as a stamp from a medical facility located abroad), and the Veteran's DD-214 reports that the Veteran had no foreign service. Furthermore, even assuming the Veteran were stationed in Korea, the probative evidence does not suggest that the Veteran was exposed to herbicide agents while there: the Veteran's entire period of service predates the acknowledged use of herbicide agents in Korea, so exposure is not presumed, and the record is absent any competent evidence of the use of herbicides in Korea in 1953-1954. The Board acknowledges that a veteran may, in certain circumstances, be competent to establish non-presumptive exposure to herbicide agents. Such a circumstance is not shown, here, however: the Veteran has not provided any explanation for why he believes he was exposed to an herbicide agent during service, and the Board finds the Veteran's bare-boned history of exposure is not competent evidence of exposure to an herbicide agent in service. Finally, the competent evidence does not suggest that the onychomycosis or dermatophytosis is related to a service-connected disability. The Board acknowledges that the Veteran has been found to be "high risk foot" related to his diabetes. See August 2009 VA treatment record. Service connection is not in effect for diabetes, however. Moreover, evaluation was normal, and the Veteran has not been diagnosed with any foot condition which has been linked in any way (either through medical findings, medical studies, or competent lay histories) to diabetes. Accordingly, service connection is not warranted for onychomycosis and dermatophytosis. Furthermore, service connection is not warranted for any other skin or foot disability. The Board has carefully reviewed the evidence of record but finds no probative evidence that the Veteran has had a skin or foot disability other than onychomycosis or dermatophytosis at any point during any part of the claims period. The medical record does not reveal any medical findings or diagnoses indicative of another skin or foot disability during the appellate period, to include an "old" diagnosis of a disorder known to be a chronic condition, and the Veteran has not provided any information to suggest the existence of a current skin or foot disability other than dermatophytosis and onychomycosis, to include a history of continuous or recurrent symptoms of a previously treated condition. In sum, there is no probative evidence of a current skin or foot disability other than onychomycosis or dermatophytosis. Accordingly, service connection is not warranted for a skin or foot disability. Left Knee Disability Service treatment and examination records reflect no findings or histories indicative of a left knee disability. A September 1998 VA treatment record reflects the Veteran's history of pain in the left lower leg. Examination revealed mild sensory changes in the lower extremity. Otherwise, there was no "no interval change clinically." A November 2002 VA treatment record reflects the Veteran's history of occasional knee pain. November 2004 VA treatment records reflect the Veteran's history of left knee pain after stepping down the wrong way. Examination revealed joint effusion. X-ray imaging revealed left-sided joint effusion and mild osteoarthritc changes. Magnetic resonance imaging (MRI) of the left knee revealed findings of large effusion, tricompartmental osteoarthritic changes, degeneration of the lateral meniscus, chronic medial collateral ligament strain with a possible superimposed mild acute strain, severe degeneration of the medical meniscus, and mild tenosynovitis. See November and December 2004 OSU treatment record and MRI report; November 2004 VA X-ray report. A November 2007 VA treatment record reflects diagnoses of left knee sprain, degenerative joint disease, and degenerative meniscus tear. Service connection is not warranted for a left knee disability. Initially, the Board finds the competent evidence does not suggest that any left knee disorder was present in service or until more than one year after the Veteran's discharge from service. The service treatment and examination records, to include the August 1954 temporary retirement examination record, reflect no findings or histories suggestive of the claimed disability, the first complaint pertaining to the left leg was documented approximately 44 years after active service, and the first complaint pertaining to the knee dates 48 years after active service, though the Veteran received treatment and underwent VA examinations during that time. See Maxson, 230 F.3rd. at 1333. Furthermore, the Veteran has not reported the existence of left knee symptoms during service, though he is competent to do so. The Board acknowledges that the Veteran reported that his left knee disability began during service. The Veteran provides no explanation for this assertion, however, and in the absence of such an explanation, or a history of symptoms or injury during service, the Board finds the Veteran's contention is not probative evidence of an in-service onset of the disability. The competent evidence also does not suggest that any current left knee disability is related to service. The record includes no medical findings or competent lay evidence suggesting such a link. Although the Veteran might sincerely believe that his osteoarthritis is related to his active service, his assertion of a relationship is not competent evidence of a nexus: the Veteran has not reported a history of continuity of symptomatology, and the record does not otherwise suggest the Veteran, who is a layperson, is competent to determine the cause of his left knee disability. Accordingly, service connection is not warranted for this disability. Sleep Apnea Service treatment and examination records do not reflect any findings or histories indicative of sleep apnea. A March 2001 VA treatment record reflects the Veteran's history of yellowish productive cough, chest congestion, and dyspnea for two days. He also reported that he stopped breathing for a short time during the past few months. The record reflects diagnoses including rule out sleep apnea. The record notes that a sleep study should be considered. A January 2002 VA treatment record reflects the Veteran's negative history of snoring or sleep apnea. A September 2004 VA treatment record reflects the Veteran's history of sleeping only a few hours at a time. The record reports a determination that the Veteran had possible sleep apnea. A September 2006 VA treatment record reflects a diagnosis of rule out sleep apnea. The Veteran was referred for a sleep apnea study, which was conducted in October 2006. November and December 2006 VA treatment records indicate that the sleep study suggested mild sleep apnea. A May 2007 VA treatment record reflects the Veteran's history of feeling tired. The record notes that the ,"sleep study does not suggest sleep study." The record does not reflect a diagnosis of sleep apnea. A December 2007 VA treatment record indicates that the Veteran's wheezing was, "possibly due to sleep apnea, mild, associated with upper way obstruction." Service connection is not warranted for sleep apnea because the preponderance of the evidence shows that it was not present in service and is not related to service. Initially, the Board finds the competent evidence does not suggest that sleep apnea was present in service. The service treatment and examination records, to include the August 1954 temporary retirement examination record, reflect no findings or histories suggestive of the condition, and the first finding of possible sleep apnea dates 47 years after active service, though the Veteran received treatment and underwent VA examinations during that time. See Maxson, 230 F.3rd. at 1333. The Board acknowledges that the Veteran has alleged that his sleep apnea began in service. The Veteran provides no explanation for this assertion, however, and in the absence of such an explanation, or a history of symptoms similar to his current sleep apnea symptoms during service, the Board finds the Veteran's contention is not probative evidence of an in-service onset of the sleep apnea. The competent evidence also does not suggest that the sleep apnea is related to service or a service-connected disability. The record includes no medical findings or competent lay evidence suggesting such a link. Although the Veteran might sincerely believe that his sleep apnea is related to his active service, his assertion of a relationship is not competent evidence of a nexus: the Veteran has not reported a history of continuity of symptomatology, and the record does not otherwise suggest the Veteran, who is a layperson, is competent to determine the cause of the sleep apnea. See Davidson, 581 F.3d at 1316. Accordingly, service connection is not warranted for this disability. Diabetes The service treatment and examination records reflect no findings or histories indicative of diabetes. Diabetes was diagnosed by a VA medical professional in April 1997. See VA "Outpatient Problem List." Subsequent VA treatment records indicate that the condition has persisted since that time. Service connection is not warranted for diabetes because the preponderance of the evidence shows that it was not present until more than one year following the Veteran's discharge from service and is not related to service. The service treatment and examination records, to include the August 1954 temporary retirement examination record, reflect no findings or histories suggestive of diabetes, the earliest diagnosis of record dates 46 years after service, and histories provided soon after diagnosis dates its onset to no less than 41 years after service (per history provided in January 1998). Furthermore, the Veteran has not reported the existence of symptoms suggestive of diabetes during service or the presumptive period, though he is competent to do so. The competent evidence also does not suggest that the diabetes is related to service or a service-connected disability. The Board acknowledges that the Veteran believes his diabetes is due to in-service herbicide exposure while he was stationed in Korea. Although diabetes is a disease subject to presumptive service connection based on herbicide exposure, the probative evidence does not indicate that the Veteran was exposed to an herbicide agent during service. As discussed above, the Board finds the history of service in Korea is not credible, and thus, not probative, because it is contradicted by the service records, to include the DD-214, which do not document any foreign service. Furthermore, even assuming the Veteran were stationed in Korea, the probative evidence does not suggest that the Veteran was exposed to herbicide agents while there: the Veteran's entire period of service predates the acknowledged use of herbicide agents in Korea, so exposure is not presumed, and, as discussed above, the record is absent any probative evidence of the use of herbicides in Korea in 1953-1954. The Board further acknowledges that the Veteran believes the diabetes is secondary to sleep apnea. Service connection is not in effect for sleep apnea, however. Moreover, the record does not include any medical findings suggesting a link between sleep apnea and diabetes or suggest that the Veteran is competent to make such a determination. See Davidson, 581 F.3d at 1316. Accordingly, service connection is not warranted for diabetes. (CONTINUED ON NEXT PAGE) ORDER Service connection for a bilateral foot disability is denied. Service connection for a skin disability is denied. Service connection for a left knee disability is denied. Service connection for sleep apnea is denied. Service connection for diabetes is denied. ______________________________________________ Shane A. Durkin Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs