Citation Nr: 1315718 Decision Date: 05/13/13 Archive Date: 05/15/13 DOCKET NO. 09-34 810 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Los Angeles, California THE ISSUE Entitlement to service connection for psoriatic arthritis, to include as secondary to herbicide exposure. REPRESENTATION Veteran represented by: California Department of Veterans Affairs WITNESS AT HEARING ON APPEAL Veteran ATTORNEY FOR THE BOARD Adrian Jackson, Counsel INTRODUCTION The Veteran served on active duty from July 1964 to July 1968. This case comes before the Board of Veterans' Appeals (Board) on appeal from a December 2005 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Los Angeles, California. The Veteran testified at a Board hearing at the RO in Los Angeles, California in August 2012. This transcript has been associated with the file. This case was before the Board in November 2012. At that time, the Board granted service connection for diabetes mellitus secondary to Agent Orange exposure and reopened the claim for service connection for psoriatic arthritis. The Board then remanded the issue to the RO for further development. The case has been returned for appellate review. FINDINGS OF FACT 1. The Veteran has confirmed service in the brown waters of Vietnam, so it is presumed he was exposed to Agent Orange. 2. He did not, however, have psoriasis or psoriatic arthritis during his service or psoriatic arthritis within one year of his discharge from service, meaning by July 1969, (certainly not to the required minimum compensable degree of at least 10-percent disabling); and neither psoriasis nor psoriatic arthritis are one of the diseases presumptively associated with Agent Orange exposure in Vietnam. 3. Moreover, when asked to comment on whether the diagnosed psoriasis and psoriatic arthritis are related to the Veteran's military service, a VA compensation physician indicated there is no such cause-and-effect correlation in this particular instance. CONCLUSION OF LAW The Veteran's psoriatic arthritis was not incurred in or aggravated by his military service and may not be presumed to have been. 38 U.S.C.A. §§ 1110, 1112, 1113, 1116, 1131, 5103, 5103A, 5107 (West 2002); 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.307, 3.309 (2012). REASONS AND BASES FOR FINDINGS AND CONCLUSION I. Duty to Assist VA has duties to notify and assist the Veteran in substantiating this claim for VA benefits. 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5107, 5126; 38 C.F.R. §§ 3.102, 3.156(a), 3.159 and 3.326(a). Proper notice must inform him of the information and medical or lay evidence not of record: (1) that is necessary to substantiate this claim; (2) that VA will obtain and assist him in obtaining; and (3) that he is expected to provide. See 38 C.F.R. § 3.159(b)(1); see also Quartuccio v. Principi, 16 Vet. App. 183, 187 (2002); Charles v. Principi, 16 Vet. App. 370, 373-74 (2002). These VCAA notice requirements apply to all five elements of this service-connection claim: (1) Veteran status; (2) existence of a disability; (3) a connection between the Veteran's service and this disability; (4) degree of disability; and (5) effective date of the disability. See Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006), aff'd sub nom. Hartman v. Nicholson, 483 F.3d 1311 (2007). Further, this notice must include information that a "downstream" disability rating and an effective date for the award of benefits will be assigned if service connection is granted. Id., at 486. The Veteran was provided this required notice in September 2005, November 2005, March 2009, April 2009, and June 2009 letters. The letters indicated the type of evidence and information needed to substantiate this claim and apprised him of his and VA's respective responsibilities in obtaining this supporting evidence. The RO sent the September and November 2005 letters prior to initially adjudicating his claim in December 2005, therefore, in the preferred sequence since, ideally, VCAA notice should be provided prior to an initial unfavorable decision on a claim. Pelegrini v. Principi, 18 Vet. App. 112 (2004) (Pelegrini II). And although the additional March, April, and June 2009 letters, which, incidentally, also addressed the "downstream" Dingess elements, were not sent prior to initially adjudicating the claim, the claim since has been readjudicated in the February 2013 supplemental statement of the case (SSOC). Moreover, although this claim was originally a petition to reopen his claim for service connection, these letters included the necessary information regarding a direct claim for service connection. And the claim has been reconsidered since providing all required VCAA notice. See Mayfield v. Nicholson, 499 F.3d 1317, 1323 (Fed. Cir. 2007) (Mayfield IV); Prickett v. Nicholson, 20 Vet. App. 370, 376 (2006). As for the duty to assist, the RO and AMC obtained the Veteran's service treatment records (STRs) and service personnel records (SPRs), including those verifying his service in Vietnam during the Vietnam War era. Also obtained were his post-service VA and private treatment records. The Board has also reviewed VA medical records in his electronic ("Virtual VA") file. He has not identified any other records that also need to be obtained. And, as already alluded to, the Board remanded this claim in November 2012 for a medical nexus opinion concerning the determinative issue of the etiology of his psoriasis and psoriatic arthritis; and specifically insofar as the likelihood they are related or attributable to his military service. 38 U.S.C.A. § 5103A(d)(2); 38 C.F.R. § 3.159(c)(4). See also McLendon v. Nicholson, 20 Vet. App. 79 (2006). The VA compensation physician that was designated to provide this medical nexus opinion responded in February 2013 with findings and opinions responsive to this determinative issue of causation, so, as already mentioned, there was compliance with this remand directive. See D'Aries v. Peake, 22 Vet. App. 97, 105 (2008); Chest v. Peake, 283 Fed. App. 814 (Fed. Cir. 2008); and Dyment v. West, 13 Vet. App. 141, 146-47 (1999). Thus, the duty to assist the Veteran with this claim also has been satisfied. II. General Statutes, Regulations and Precedent Cases Governing Claims for Service Connection- Including those Predicated on Exposure to Agent Orange in Vietnam The Veteran is claiming that his psoriatic arthritis is related to his exposure to Agent Orange while aboard the U.S.S. Maddox from November 1965 to May 1968. Service connection is granted for disability resulting from disease or injury incurred in or aggravated by active military service in the line of duty. 38 U.S.C.A. § 1110, 1131; 38 C.F.R. § 3.303(a). Establishing entitlement to direct service connection requires: (1) competent and credible evidence confirming the Veteran has the claimed disability or, at the very least, showing he has at some point since the filing of the claim; (2) competent and credible evidence of in-service incurrence or aggravation of a relevant disease or an injury; and (3) competent and credible evidence of a nexus or link between the in-service disease or injury 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). Arthritis is a chronic disability and therefore will be presumed to have been incurred in service if manifested to a compensable degree (meaning to at least 10-percent disabling) within one year of discharge from service. This presumption, however, is rebuttable by affirmative evidence to the contrary. 38 U.S.C.A. §§ 1101, 1112, 1113, 1131; 38 C.F.R. §§ 3.307, 3.309(a). Also, 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 an herbicide agent, such as Agent Orange, unless there is affirmative evidence establishing that he was not exposed to any such agent during that service. See 38 C.F.R. § 3.307(a)(6)(iii). Thus, service connection may be presumed for residuals of Agent Orange exposure by satisfying two requirements. First, a Veteran must show that he served in the Republic of Vietnam during the Vietnam War era. See 38 U.S.C.A. § 1116; 38 C.F.R. § 3.307(a)(6). Second, the Veteran must have a diagnosis of one of the specific diseases listed in 38 C.F.R. § 3.309(e). Brock v. Brown, 10 Vet. App. 155, 162 (1997). These diseases, however, must 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 must 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. See 38 C.F.R. § 3.307(a)(6)(ii). Moreover, VA has determined there is no positive association between exposure to herbicides and any other condition for which the Secretary has not specifically determined that a presumption of service connection is warranted. See Notice, 59 Fed. Reg. 341 -46 (1994); see also Notice, 61 Fed. Reg. 41, 442-49 (1996). See, too, Diseases Not Associated With Exposure to Certain Herbicide Agents, 68 Fed. Reg. 27,630 (May 20, 2003); see also Health Outcomes Not Associated With Exposure to Certain Herbicide Agents, 72 FR 32395-01 (June 12, 2007). Arthritis to include psoriatic arthritis is not recognized under regulation as a herbicide related disease. Service in the Republic of Vietnam' includes service in the waters offshore and service in other locations if the conditions of service involve duty or visitation in the Republic of Vietnam. 38 C.F.R. § 3.307(a)(6)(iii). An opinion of the General Counsel for VA held that service on a deep-water naval vessel off the shores of Vietnam may not be considered service in the Republic of Vietnam for purposes of 38 U.S.C.A. § 101(29)(A). See VAOPGCPREC 27-97 (July 23, 1997). The United States Court of Appeals for the Federal Circuit has clearly held that VA's requirement that a claimant must have been present within the land borders of Vietnam at some point in the course of duty in order to be entitled to a presumption of herbicide exposure and service connection for diseases associated with that exposure constitutes a permissible interpretation of 38 U.S.C.A. § 1116(a)(1) and 38 C.F.R. § 3.307(a)(6)(iii). Haas v. Nicholson, 20 Vet. App. 257 (2006), rev'd sub nom. Haas v. Peake, 525 F.3d 1168 (Fed. Cir. 2008), cert. denied, 129 S. Ct. 1002 (2009). Service on inland waterways (also called brown water service) is also considered to be sufficient to invoke the presumption. III. Analysis The Veteran's private and VA treatment and examination records document current psoriasis and psoriatic arthritis. So there is no disputing he has the alleged conditions and, therefore, satisfies the first and indeed perhaps most fundamental requirement of his claim, that is, have proof he has this claimed disability. See Boyer v. West, 210 F.3d 1351, 1353 (Fed. Cir. 2000); Brammer v. Derwinski, 3 Vet. App. 223, 225 (1992). Consequently, the determinative issue is whether these conditions are attributable to his military service, including to any exposure to Agent Orange or other herbicide. See Watson v. Brown, 4 Vet. App. 309, 314 (1993) ("A determination of service connection requires a finding of the existence of a current disability and a determination of a relationship between that disability and an injury or a disease incurred in service."). See, too, Maggitt v. West, 202 F.3d 1370, 1375 (Fed. Cir. 2000); D'Amico v. West, 209 F.3d 1322, 1326 (Fed. Cir. 2000); Hibbard v. West, 13 Vet. App. 546, 548 (2000); and Collaro v. West, 136 F.3d 1304, 1308 (Fed. Cir. 1998). As pointed out in a prior decision, the Veteran has provided deck logs which indicate that the U.S.S. Maddox was in the inland waterways of Vietnam while the Veteran was aboard. Thus, the Board will concede the Veteran was exposed to Agent Orange while in the brown waters of Vietnam. But neither psoriasis nor psoriatic arthritis are one of the diseases presumptively associated with exposure to Agent Orange. See 38 U.S.C.A. § 1116(a)(2); 38 C.F.R. § 3.309(e). However, the availability of presumptive service connection for a disability based on exposure to herbicides does not preclude a Veteran from establishing service connection with proof of direct causation. Stefl v. Nicholson, 21 Vet. App. 120 (2007); see also Combee v. Brown, 34 F.3d 1039 (Fed. Cir. 1994); and McCartt v. West, 12 Vet. App. 164, 167 (1999). In this regard, the Veteran's STRs are unremarkable for any suggestion of psoriasis or psoriatic arthritis, however. Besides tattoos, his skin and musculoskeletal system were considered normal on both the July 1964 enlistment examination and the July 1968 release from active duty (RFAD) examination, so these records provide evidence against in-service incurrence of either of these conditions. See Struck v. Brown, 9 Vet. App. 145 (1996). In fact, there were no clinical findings or diagnoses of psoriasis or psoriatic arthritis during his service or for nearly 20 years thereafter, until 1988 or thereabouts. More specifically, the first post-service clinical indication of psoriasis was in July 1988. At a private "new patient evaluation" of Dr. M.B., the Veteran reported that he had an onset of psoriasis 5 years previously and that arthritis developed only a year and half ago. So, by this history, his psoriasis began 15 years after service. This is still an extended period of time after service discharge. Moreover, in this regard, the Board notes that over the course of the years, and, especially during his appeal, the Veteran has provided inconsistent statements regarding the onset of his psoriatic disorders, which in turn, affects the credibility of his statements. For instance, at his hearing he reported that he began treatment for psoriasis while working at Atlantic Richfield immediately after service discharge. But, he was unable to obtain any clinical records associated with his employment at that time. VA outpatient records dated in September 1993 show that he reported the onset of psoriasis in 1972 and psoriatic arthritis in 1974. A medical record from Bakersfield Dermatology dated in February 1991, shows that he reported a 10 year history of psoriatic arthritis (i.e., in 1981). A March 1994 VA outpatient clinical note indicates that his psoriasis began sometime in the 1970s (the last digit is illegible). He also submitted lay statements that indicate still different times of onset. An August 2012 statement from B.E.C. indicates that he had known the Veteran since 1974 and the Veteran has had psoriasis since then. Another undated statement from D.Y. indicates that he has known the Veteran all of his life and that the Veteran has had psoriasis since the late 1960s. The Board finds the statements given by the Veteran in conjunction with his private treatment in 1988 more credible in light of the fact that this history was given for treatment purposes as opposed to the possibility of monetary benefits. In weighing credibility, discounting of competent testimony or statements from a lay person may occur "in the light of its own inherent characteristics and its relationship to other items of evidence." Madden v. Gober, 125 F.3d 1477 (Fed. Cir. 1997). Factors for consideration therefore include a showing of interest, self-interest, bias, inconsistent statements, inconsistency with other evidence of record, facial implausibility, bad character, malingering, desire for monetary gain, and witness demeanor. See Pond v. West, 12 Vet. App. 341 (1999); Macarubbo v. Gober, 10 Vet. App. 388 (1997); Nevertheless, the Board realizes that the mere fact that there is no documentation of this condition for so long after service, such as in the way of treatment records, is not altogether dispositive of this claim, but it is nonetheless probative evidence to be considered in deciding this claim and may be viewed as evidence against it. See Maxon v. West, 12 Vet. App. 453, 459 (1999), affirmed sub nom. Maxon v. Gober, 230 F.3d 1330, 1333 (Fed. Cir. 2000) (ruling that a prolonged period without medical complaint can be considered, along with other factors, as evidence of whether an injury or a disease was incurred in service resulting in any chronic or persistent disability). Also, because neither psoriasis nor psoriatic arthritis were noted at any time during his service, any notion of continuity of symptomatology since service under 38 C.F.R. § 3.303(b) does not apply. There also is no competent and credible evidence otherwise linking or relating this condition to his military service. The Veteran submitted a July 2005 clinical record from his private physician who noted that the Veteran "was exposed to [A]gent [O]range and this could result in psoriasis and psoriatic arthritis." The Board however can find only limited probative value in this statement. An examiner saying a condition "could be " related to the Appellant's military service is tantamount to saying it just as well "may not" be related to his service. Medical statements like this, which are inconclusive as to the origin of a disorder, generally cannot be employed as suggestive of a linkage between the disorder and the Veteran's active service. Warren v. Brown, 6 Vet. App. 4, 6 (1993); Sklar v. Brown, 5 Vet. App. 104, 145-6 (1993). However, these types of opinions also cannot be used to rule out this purported correlation, either. Ultimately, noncommittal opinions like this amount to "nonevidence," neither for nor against the claim because service connection may not be based on speculation or remote possibility. See generally Bloom v. West, 12 Vet. App. 185 (1999) (a medical opinion based on speculation, without supporting clinical data or other rationale, does not provide the required degree of medical certainty). See also 38 C.F.R. § 3.102 (when considering application of the benefit-of-the-doubt doctrine, reasonable doubt is one within the range of probability, as distinguished from pure speculation or remote possibility). In light of this medical history, the Board remanded the case for a medical nexus opinion. Pursuant to the November 2012 remand directives, a VA physician examined the Veteran in February 2013. The VA examiner concluded that given the fact that there was no evidence of psoriasis or psoriatic arthritis within a year of service and the fact that medical notes only document the beginning of psoriasis in 1972 and psoriatic arthritis in 1974, it is less likely than not the Veteran's claimed disabilities are related to military service. (It is noted that the beginning of psoriasis in the 1970s was reported by the Veteran in the 1990s; there is no evidence on file documenting treatment or diagnoses of the disabilities in the 1970s or 1980s.) This examiner also pointed out the fact that there is no evidence (i.e. medical literature) linking Agent Orange to psoriasis or psoriatic arthritis. Since this VA examiner's opinion was based on a review of the pertinent medical history and was supported by sound medical rationale, it provides compelling evidence against the Veteran's claim that his psoriatic conditions are related to military service. See Wray v. Brown, 7 Vet. App. 488, 493 (1995) (holding that the adoption of an expert medical opinion may satisfy the Board's statutory requirement of an adequate statement of reasons and bases if the expert fairly considered the material evidence seemingly supporting the Veteran's position). As such, for the reasons and bases discussed, the Board finds the statements of the private doctor and the Veteran's lay statements attributing his current problems to his military service are less probative than the VA compensation examiner's opinion disputing that there is any such correlation. For these reasons and bases, the preponderance of the evidence is against this claim for service connection for psoriatic arthritis on either a direct or presumptive basis. And because the preponderance of the evidence is against this claim, there is no reasonable doubt to be resolved in the Veteran's favor, so this claim must be denied. 38 C.F.R. § 3.102 . ORDER The claim for service connection for psoriatic arthritis is denied. ____________________________________________ K. Parakkal Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs