Citation Nr: 1316979 Decision Date: 05/23/13 Archive Date: 05/31/13 DOCKET NO. 08-07 159 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in St. Louis, Missouri THE ISSUE Entitlement to service connection for a skin disorder diagnosed as hidradenitis suppuritiva of the left groin and buttock, status post excision with skin grafting, including due to exposure to Agent Orange. REPRESENTATION Appellant represented by: Military Order of the Purple Heart of the U.S.A. ATTORNEY FOR THE BOARD E. D. Anderson, Counsel INTRODUCTION The Veteran served on active duty from June 1963 to December 1963, and from October 1964 to January 1975. This matter comes before the Board of Veterans' Appeals (Board) on appeal from an August 2006 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in St. Louis, Missouri, which in pertinent part denied service connection for a skin cyst. The Board has since recharacterized the issue on appeal to more accurately represent the Veteran's claim. The Board previously remanded this case in February 2011, October 2011 and June 2012. The actions specified in the previous remands, to include the most recent June 2012 Remand, have been completed, and the matter has been properly returned to the Board for appellate consideration. See Stegall v. West, 11 Vet. App. 268 (1998). FINDINGS OF FACT 1. The Veteran served in the Republic of the Vietnam during the Vietnam era, and is presumed to have been exposed to Agent Orange. 2. The medical evidence does not show that the Veteran has been diagnosed with any skin disease determined by VA to be associated with presumed exposure to Agent Orange in connection with service in the Republic of Vietnam during the Vietnam era. 3. A skin disorder, diagnosed as hidradenitis suppuritiva of the left groin and buttock, status post excision with skin grafting, was not manifest during service, and is not otherwise attributable to service, to include exposure to herbicides including Agent Orange. CONCLUSION OF LAW A skin disorder, diagnosed as hidradenitis suppuritiva of the left groin and buttock, status post excision with skin grafting, was not incurred in or aggravated by service, and may not be presumed to have been incurred therein. 38 U.S.C.A. §§ 1101, 1110, 1112, 1113 (West 2002); 38 C.F.R. §§ 3.303, 3.307, 3.309 (2012). REASONS AND BASES FOR FINDINGS AND CONCLUSION The Board has reviewed all of the evidence in the claims folder. Although the Board has an obligation to provide reasons and bases supporting this decision, there is no need to discuss, in detail, the extensive evidence of record. Indeed, the Federal Circuit has held that the Board must review the entire record, but does not have to discuss each piece of evidence. Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000). Therefore, the Board will summarize the relevant evidence where appropriate, and the Board's analysis below will focus specifically on what the evidence shows, or fails to show, as to these claims. The Board must assess the credibility and weight of all evidence, including the medical evidence, to determine its probative value, accounting for evidence which it finds to be persuasive or unpersuasive, and providing reasons for rejecting any evidence favorable to the claimant. Equal weight is not accorded to each piece of evidence contained in the record; every item of evidence does not have the same probative value. When all the evidence is assembled, VA is responsible for determining whether the evidence supports the claim or is in relative equipoise, with the appellant prevailing in either event, or whether a preponderance of the evidence is against a claim, in which case, the claim is denied. Gilbert v. Derwinski, 1 Vet. App. 49 (1990). The Board must note that in reviewing this case the Board has not only reviewed the Veteran's physical claims file, but the Veteran's file on the "Virtual VA" system to insure a total review of the evidence. Service Connection Service connection may be granted if the evidence demonstrates that a current disability resulted from an injury or disease incurred or aggravated in active military service. 38 U.S.C.A. §§ 1110, 1131 (West 2002); 38 C.F.R. § 3.303(a) (2012). In general, service connection requires competent and credible evidence of (1) a current disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a nexus between the claimed in-service disease or injury and the current disability. See Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004). Under 38 C.F.R. § 3.303(b), an alternative method of establishing the second and third elements is through a demonstration of continuity of symptomatology. Barr v. Nicholson, 21 Vet. App. 303 (2007); see Savage v. Gober 10 Vet. App. 488, 495-97 (1997); see also Clyburn v. West, 12 Vet. App. 296, 302 (1999). Continuity of symptomatology may be established if a claimant can demonstrate (1) that a condition was "noted" during service; (2) evidence of post- service continuity of the same symptomatology; and (3) medical or, in certain circumstances, lay evidence of a nexus between the present disability and the post-service symptomatology. Savage, 10 Vet. App. at 495-96; see Hickson v. West, 12 Vet. App. 247, 253 (lay evidence of in-service incurrence is sufficient in some circumstances for purposes of establishing service connection); 38 C.F.R. § 3.303(b). However, in Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013), the Federal Circuit held that the theory of continuity of symptomatology can be used only in cases involving those conditions explicitly recognized as chronic by 38 C.F.R. § 3.309(a). Walker v. Shinseki, 708 F.3d 1331, 1337-39 (Fed. Cir. 2013). For disabilities that are not listed as chronic under 38 C.F.R. § 3.303(b), the only avenue for service connection is by showing in-service incurrence or aggravation under 38 C.F.R. § 3.303(a), or by showing that a disease that was first diagnosed after service is related to service under 38 C.F.R. § 3.303(d). Hidradenitis suppuritiva is not listed as a chronic disability under 38 C.F.R. § 3.303(b). 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. 38 C.F.R. § 3.303(d) (2012). VA regulations also provide that if a veteran was exposed to an herbicide agent during active military, naval, or air service, the following diseases shall be service connected if the requirements of 38 C.F.R. § 3.307(a) are met, even if there is no record of such disease during service: AL amyloidosis, chloracne or other acneform disease consistent with chloracne; type 2 diabetes (also known as Type II diabetes mellitus); Hodgkin's disease; chronic lymphocytic leukemia (CLL); multiple myeloma; Non-Hodgkin's lymphoma; acute and subacute peripheral neuropathy; porphyria cutanea tarda; prostate cancer; respiratory cancers (cancer of the lung, bronchus, larynx or trachea); soft tissue sarcoma (other than osteosarcoma, chondrosarcoma, Kaposi's sarcoma, or mesothelioma), chronic B-cell leukemias, Parkinson's disease, and ischemic heart disease. 38 C.F.R. § 3.309(e) (2012). 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, unless there is affirmative evidence to establish that the veteran was not exposed to any such agent during service. 39 U.S.C.A. § 1116(f) (West 2002); 38 C.F.R. § 3.307(a)(6)(iii) (2012). The Secretary, under the authority of the Agent Orange Act of 1991 and based on the studies by the National Academy of Sciences (NAS), has determined that there is no positive association between exposure to herbicides and any condition for which the Secretary has not specifically determined that a presumption of service connection is warranted. See Notice, 59 Fed. Reg. 341 -346 (1994); see also Notice, 61 Fed. Reg. 41,442 -449, and 61 Fed. Reg. 57,586 -589 (1996); Notice, 64 Fed. Reg. 59,232 -243 (Nov. 2, 1999); Notice, 67 Fed. Reg. 42,600 - 08 (June 24, 2002); Notice, 72 Fed. Reg. 32,395 -407 (June 12, 2007); Final Rule, 74 Fed. Reg. 21,258 -260 (May 7, 2009) (adding AL amyloidosis to the list of presumptive disabilities in the regulation). The Secretary has published a list of specific conditions for which a presumption of service connection based on exposure to herbicides used in Vietnam during the Vietnam era is not warranted. See Notice, 75 Fed. Reg. 32540 -03 (2010). The Court, however, has held that even though a disease is not included on the list of presumptive diseases a nexus between the disease and service may nevertheless be established on the basis of direct service connection. See Stefl v. Nicholson, 21 Vet. App. 120, 123 (2007). The United States Court of Appeals for the Federal Circuit (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 the service. See Combee v. Brown, 34 F.3d 1039 (Fed. Cir. 1994). The record shows a current diagnosis of hidradenitis suppuritiva of the groin and buttock, status post excision with skin grafting in 2006. The Veteran maintains that he has a current skin condition that either had onset in service or that is related to his active service, to include as due to exposure for Agent Orange and other herbicides. Service in Vietnam is undisputed, as the Veteran's service personnel records show that he served in the Republic of Vietnam. Therefore, he is entitled to a presumption of exposure to herbicide agents. However, although exposure to herbicides during service is conceded, the Board notes that the Veteran's diagnosis is not a disability which is recognized by the Secretary as warranting a presumption of service connection. 38 C.F.R. § 3.309(e). There is no evidence of record that the Veteran has ever been diagnosed with or treated for cloracne or porphyria cutanea tarda. The Board further finds that service connection for a skin disorder is not warranted on a direct basis. The Veteran's service treatment records reflect that he was treated on many occasions in service for facial acne, lesions over the back of the neck suggestive of sarcoid, and an infected suprapubic sebaceous cyst. Post-service, there is no medical evidence of any skin disorder for many years after service. The Veteran was afforded a VA examination in January 1977 for an unrelated claim and no skin condition was found at that time. In January 2005, the Veteran's primary care physician, Dr. P.B.T., reported that she had seen the Veteran on ten occasions between October 1993 and November 2003 for "abscesses and/or boils." A September 2006 VA Discharge Summary notes a more than twenty year history of recurrent groin and buttock abscesses. In August 2009, the Veteran's former spouse submitted a statement in which she testified that after his return from Vietnam in 1969, the Veteran started complaining of a cyst on the back of his thigh below the buttock and continued to complain of similar cysts until the time of the parties divorce in 1979. The Veteran was afforded a VA examination in March 2010 to assess the current nature and etiology of his skin disorder. The Veteran reported recurring boils over his groin and buttock area beginning in the late 1960s to early 1970s. He was diagnosed with hidradenitis suppuritiva of the groin and buttock, status post excision with skin grafting in 2006. It was noted that this condition affected 15 percent of the body surface area and that there was occasional recurrence in the left groin. The examiner opined that she was unable to link the Veteran's hidradenitis with any skin condition that was documented in the service treatment records, given that the only condition that had been diagnosed at that time was acne. The examiner explained that these two conditions are unrelated. The Veteran underwent another VA dermatological examination in March 2011, but the VA examiner only discussed whether hidradenitis suppuritiva originated from symptoms of a dermatological condition diagnosed and treated in service during the mid-1960s, and overlooked the Veteran's presumed Agent Orange exposure as a potential factor in the development of a current dermatological disorder. Accordingly, the matter was remanded for additional development. In October 2011, the March 2011 VA examiner offered an addendum opinion, stating as follows: In the service [the Veteran] had acne on [his] face and a supra-pubic cyst. Acne and epidermal cysts are common conditions. His separation examination in 1974 and dermatology examination in 1982 did not show hidradenitis. The cause of hidradenitis is unknown. It is less likely than not the Veteran's hidradenitis is related to military service. The time course of disease does not support service connection with no disease documented from time of discharge [in] 1975 or in 1982. The condition documented while he was in service was not hidradenitis. In addition, hidradenitis is not caused by Agent Orange exposure. While this is a detailed and clear opinion rationale, not all factors are addressed that are significant for purposes of definitively resolving the case at hand. Namely, there is the fact that the Veteran steadfastly contends that he first noticed a condition similar to hidradenitis suppurativa during military service shortly after returning from Vietnam. The August 2009 statement from the Veteran's ex-wife also recounts that the Veteran complained of painful cysts having manifested in October 1969 when he returned from Vietnam, and continuing from that time period. The foregoing statements qualify as competent lay testimony of the initial in-service incurrence of a skin disorder, and of continuity of symptomatology thereafter. As a result, the VA examiner would need to properly consider such competent lay testimony evidence as part of his overall conclusion. The fact that hidradenitis suppuritiva was not officially documented between 1974 and 1982 thus cannot provide the exclusive rationale for any opinion on causation, in light of competent lay assertions to the contrary. In a July 2012 addendum, the VA examiner again concluded that it is less likely than not that the Veteran's current hidradenitis is related to his military service. He noted the evidence on file which reflects the Veteran was seen in service for medical treatment of the skin, including for treatment of acne and a cyst in the pubic area, and the lack of evidence that the Veteran was treated for or diagnosed with hidradenitis. The examiner also acknowledged the lay statements from the Veteran and his former spouse regarding continuity of symptomatology in that he suffered from skin disease after his return from Vietnam. Thus, his conclusion was based on the entire evidentiary record to include the Veteran's allegations of continuity of symptomatology. Based on all the above evidence, the Board finds that entitlement to service connection for a skin disorder is not warranted. The Board notes that while the Veteran was treated for a number of skin conditions in service, there is no medical evidence that he was ever treated for his current skin disorder, hidradenitis suppuritiva. Multiple VA examiners have explained that the skin conditions the Veteran was treated for in service are not the same as his current condition. While the Board is often prohibited from finding lay evidence not credible on the sole basis of a lack of contemporaneous medical records, silence in a medical record can sometimes be relied upon as contradictory evidence; specifically, the silence in a medical record can be weighed against lay testimony if the alleged injury, disease, or related symptoms would ordinarily have been recorded in the medical record being evaluated by the fact finder. See Kahana v. Shinseki, 24 Vet. App. 428, 439 (2011) (Lance, J., concurring) (discussing credibility in relation to medical evidence); Fed. R. Evid. 803 (7) (the absence of an entry in a record may be evidence against the existence of a fact if such a fact would ordinarily be recorded). For this negative inference to be made, the Board must make two findings: first, that the record being evaluated is complete in relevant part; and, second, that the injury, disease, or related symptoms would ordinarily have been recorded had they occurred. Here, the Board finds that the Veteran's service treatment records are complete: there are entrance and separation examinations, treatment records, and dental records associated with the Veteran's claims folder. Additionally, the Board notes that the treatment the Veteran received in service included a number of skin conditions, which were diagnosed as acne. If the Veteran had hidradenitis in service, it would have likely been noted on examination as acne was. Additionally, the Board notes that post-service, the Veteran was afforded a VA examination in January 1977 which found no evidence of a skin condition. The Veteran pursued a number of claims for VA compensation benefits during 1970s, but never filed a claim for a skin condition of any kind. The Board finds that this provides evidence against the Veteran's claim, since if he suffered from hidradenitis in the 1970s as he asserts, he would likely have filed a claim for a skin disorder along with his other claims. Although the Veteran is competent to report that he had skin problems in service and thereafter, given the inconsistencies noted above, the Board finds that the lay testimony of the Veteran and his former spouse asserting that his disability had onset in service and was continuous thereafter is not credible. While the Veteran has argued that his current condition is due to Agent Orange exposure, he has not demonstrated that he has any knowledge or training in determining the etiology of such conditions. In other words, he is a layman, not a medical expert. The Board recognizes that there is no bright line rule that laypersons are not competent to offer etiology opinions. See Davidson v. Shinseki, 581 F.3d 1313, 1316 (Fed. Cir. 2009) (rejecting the view that competent medical evidence is necessarily required when the determinative issue is medical diagnosis or etiology). Evidence, however, must be competent evidence in order to be weighed by the Board. Whether a layperson is competent to provide an opinion as to the etiology of a condition depends on the facts of the particular case. In Davidson, the U.S. Court of Appeals for the Federal Circuit (Federal Circuit) drew support from Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007) for support for its holding. Id. In a footnote in Jandreau, the Federal Circuit addressed whether a layperson could provide evidence regarding a diagnosis of a condition and explained that "[s]ometimes the layperson will be competent to identify the condition where the condition is simple, for example a broken leg, and sometimes not, for example, a form of cancer. Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007). Although the Veteran seeks to offer etiology opinions rather than provide diagnoses, the reasoning expressed in Jandreau is applicable. The Board finds that the question of whether the Veteran currently has hidradenitis suppuritiva due to his alleged herbicide exposure in service is too complex to be addressed by a layperson. This connection or etiology is not amenable to observation alone. Rather it is common knowledge that such relationships are the subject of extensive research by scientific and medical professionals. Hence, the Veteran's opinion of the etiology of his current disability is not competent evidence and is entitled to low probative weight. Additionally, the Board notes that the Veteran has submitted medical literature regarding hidradenitis suppuritiva from the internet. While the Board has considered this evidence, the Board finds that such generic texts, which do not address the facts of this particular Veteran's case, and with a sufficient degree of medical certainty, do not amount to competent medical evidence of causality. Sacks v. West, 11 Vet. App. 314 (1998); Libertine v. Brown, 9 Vet. App. 521 (1996); Beausoleil v. Brown, 8 Vet. App. 459 (1996). As noted, in total, the VA examiners evaluated the Veteran, reviewed the claims file, and took into account the specific circumstances of the Veteran's case. As such, the Board finds the VA examiner's conclusions to be of greater evidentiary weight than the generic literature that was submitted. The Board gives greater weight to the opinions of the VA examiners, who after reviewing all the evidence, including the Veteran's lay statements, have concluded that the Veteran's current disability did not have onset in service and was not caused or permanently aggravated by the Veteran's active military service, to include exposure to Agent Orange in service. For all the above reasons, entitlement to service connection for a skin disorder, diagnosed as hidradenitis suppuritiva of the left groin and buttock, status post skin excision with skin grafting is denied. The evidence in this case is not so evenly balanced so as to allow application of the benefit-of- the-doubt rule. Gilbert v. Derwinski, 1 Vet. App. 49 (1990); 38 U.S.C.A. § 5107(b); 38 C.F.R. § 3.102 (2012). The Duty to Notify and Assist As provided for by the Veterans Claims Assistance Act of 2000 (VCAA), the United States Department of Veterans Affairs (VA) has a duty to notify and assist claimants in substantiating a claim for VA benefits. 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5107, 5126 (West 2002 & Supp. 2010); 38 C.F.R. §§ 3.102, 3.156(a), 3.159 and 3.326(a) (2012). Upon receipt of a complete or substantially complete application for benefits, VA is required to notify the claimant and his or her representative, if any, of any information, and any medical or lay evidence, that is necessary to substantiate the claim. 38 U.S.C.A. § 5103(a); 38 C.F.R. § 3.159(b); Quartuccio v. Principi, 16 Vet. App. 183 (2002). Proper notice from VA 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; and (3) that the claimant is expected to provide. This notice must be provided prior to an initial unfavorable decision on a claim by the agency of original jurisdiction (AOJ). Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006); Pelegrini v. Principi, 18 Vet. App. 112 (2004). In Dingess v. Nicholson, 19 Vet. App. 473 (2006), the U.S. Court of Appeals for Veterans Claims held that, upon receipt of an application for a service-connection claim, 38 U.S.C. § 5103(a) and 38 C.F.R. § 3.159(b) require VA to review the information and the evidence presented with the claim and to provide the claimant with notice of what information and evidence not previously provided, if any, will assist in substantiating, or is necessary to substantiate, each of the five elements of the claim, including notice of what is required to establish service connection and that a disability rating and an effective date for the award of benefits will be assigned if service connection is awarded. Here, the VCAA duty to notify was satisfied by letters sent to the Veteran September 2004 and February 2011. These letters informed the Veteran of what evidence was required to substantiate his claims, as well as of VA and the Veteran's respective duties for obtaining evidence. The Veteran was also informed of how VA assigns disability ratings and effective dates. However, the duty to notify was not satisfied prior to the initial unfavorable decision on the claim by the AOJ. Under such circumstances, VA's duty to notify may not be "satisfied by various post-decisional communications from which a claimant might have been able to infer what evidence the VA found lacking in the claimant's presentation." Rather, such notice errors may instead be cured by issuance of a fully compliant notice, followed by readjudication of the claim. See Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006) (where notice was not provided prior to the AOJ's initial adjudication, this timing problem can be cured by the Board remanding for the issuance of a VCAA notice followed by readjudication of the claim by the AOJ) see also Prickett v. Nicholson, 20 Vet. App. 370, 376 (2006) (the issuance of a fully compliant VCAA notification followed by readjudication of the claim, such as an SOC or SSOC, is sufficient to cure a timing defect). In this case, the VCAA duty to notify was satisfied subsequent to the initial AOJ decision by way of a letter sent to the appellant in February 2011. Although the notice letter was not sent before the initial AOJ decision in this matter, the Board finds that this error was not prejudicial to the appellant because the actions taken by VA after providing the notice have essentially cured the error in the timing of notice. Not only has the appellant been afforded a meaningful opportunity to participate effectively in the processing of his claim and given ample time to respond, but the AOJ also readjudicated the case by way of a supplemental statement of the case after the notice was provided. For these reasons, it is not prejudicial to the appellant for the Board to proceed to finally decide this appeal as the timing error did not affect the essential fairness of the adjudication. VA also has a duty to assist the veteran in the development of the claim. This duty includes assisting the veteran in the procurement of service medical records and pertinent treatment records and providing an examination when necessary. 38 U.S.C.A. § 5103A; 38 C.F.R. § 3.159. The Board finds that all necessary development has been accomplished, and therefore appellate review may proceed without prejudice to the appellant. See Bernard v. Brown, 4 Vet. App. 384 (1993). The RO has obtained the Veteran's service treatment records, as well as VA treatment records. The Veteran submitted private medical records. He was afforded VA medical examinations in March 2010 and March 2011, and addendum opinions were rendered in October 2011 and October 2012. Taken as a whole, these examinations and addendum opinions are adequate and probative for VA purposes because the examiners relied on sufficient facts and data, provided a rationale for the opinions rendered, and there is no reason to believe that the examiners did not reliably apply reliable scientific principles to the facts and data. See Nieves-Rodriguez v. Peake, 22 Vet. App. 295 (2008). Significantly, neither the appellant nor his representative has identified, and the record does not otherwise indicate, any additional existing evidence that is necessary for a fair adjudication of the claim that has not been obtained. Hence, no further notice or assistance to the appellant is required to fulfill VA's duty to assist the appellant in the development of the claim. Smith v. Gober, 14 Vet. App. 227 (2000), aff'd 281 F.3d 1384 (Fed. Cir. 2002); Dela Cruz v. Principi, 15 Vet. App. 143 (2001); see also Quartuccio v. Principi, 16 Vet. App. 183 (2002). ORDER Entitlement to service connection for a skin disorder, diagnosed as hidradenitis suppuritiva of the left groin and buttock, status post excision with skin grafting, is denied. ____________________________________________ K. Parakkal Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs