Citation Nr: 1319948 Decision Date: 06/20/13 Archive Date: 07/02/13 DOCKET NO. 05-23 092 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in St. Petersburg, Florida THE ISSUES 1. Entitlement to service connection for microvascular disease, to include as secondary to the service-connected diabetes mellitus (diabetes). 2. Entitlement to service connection for squamous cell carcinoma, status-post removal. 3. Entitlement to service connection for erectile dysfunction, to include as secondary to the service-connected diabetes. REPRESENTATION Appellant represented by: The American Legion ATTORNEY FOR THE BOARD N. Snyder, Counsel INTRODUCTION The Veteran served on active duty from March 1969 to February 1971. This matter comes before the Board of Veterans' Appeals (Board) from November 2005 and December 2007 rating decisions of the Department of Veterans Affairs (VA) Regional Office (RO) in St. Petersburg, Florida, which respectively denied a claim of service connection for a skin disability and claims of service connection for microvascular disease and erectile dysfunction. In August 2010 and April 2012, the Board remanded for additional development and due process concerns. FINDINGS OF FACT 1. The Veteran does not have microvascular disease. 2. Squamous cell carcinoma did not begin in service and is not related to service, to include in-service herbicide exposure. 3. Erectile dysfunction did not begin in service and is not related to service, to include the service-connected diabetes. CONCLUSIONS OF LAW 1. The criteria for service connection of microvascular disease 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 squamous cell carcinoma 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 erectile dysfunction have not been met. 38 U.S.C.A. § 1110 (West 2002); 38 C.F.R. §§ 3.303, 3.310 (2012). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS Service Connection Service connection may be established for disability resulting from personal injury suffered or disease contracted in the 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. 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). To establish service connection for a disability resulting from a disease or injury incurred in service, or to establish service connection based on aggravation in service of a disease or injury which pre-existed service, there must be (1) competent evidence of the current existence of the disability for which service connection is being claimed; (2) competent evidence of incurrence or aggravation of a disease or injury in active service; and (3) competent evidence of a nexus or connection between the current disability and the disease or injury incurred or aggravated in service. Horn v. Shinseki, 25 Vet. App. 231, 236 (2010); Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. 2009); cf. Gutierrez v. Principi, 19 Vet. App. 1, 5 (2004) (citing Hickson v. West, 12 Vet. App. 247, 253 (1999)). In many cases, medical evidence is required to meet the requirement that the evidence be "competent." However, when a condition may be diagnosed by its unique and readily identifiable features, the presence of the disorder is not a determination "medical in nature" and is capable of lay observation. Barr v. Nicholson, 21 Vet. App. 303, 309 (2007). Secondary service connection may be granted when a disability "is proximately due to or the result of a service-connected disease or injury." In addition, any increase in severity of a nonservice-connected disease or injury that is proximately due to or the result of a service-connected disease or injury, and not due to the natural progress of the nonservice-connected disease, will be service connected. 38 C.F.R. § 3.310. The Board must analyze the credibility and probative value of the evidence, account for the evidence which it finds to be persuasive or unpersuasive, and provide the reasons for its rejection of any material evidence favorable to the claimant. See Gabrielson v. Brown, 7 Vet. App. 36, 39-40 (1994); Gilbert v. Derwinski, 1 Vet. App. 49, 57 (1990). When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, the benefit of the doubt shall be given to the claimant. 38 U.S.C.A. § 5107(b). When a reasonable doubt arises regarding service origin, such doubt will be resolved in the favor of the claimant. Reasonable doubt is doubt which exists because of an approximate balance of positive and negative evidence which does not satisfactorily prove or disprove the claim. 38 C.F.R. § 3.102. The question is whether the evidence supports the claim or is in relative equipoise, with the claimant prevailing in either event, or whether a fair preponderance of the evidence is against the claim, in which event the claim must be denied. See Gilbert, 1 Vet. App. at 54. Microvascular Disease July 2006 VA treatment records reflect the Veteran's three month history of random anterior chest pressure. Cardiological evaluation revealed no acute disease, and an October 2006 VA treatment record reflects a cardiologist's determination that the chest pain was not likely to be cardiac. A December 2006 VA treatment record reflects a cardiologist's determination that there was no objective evidence of any significant ischemic heart disease, though "the possibility of microvascular disease cannot be excluded." A February 2007 VA treatment record reflects the Veteran's history that a cardiologist had told him he had microvascular disease. A March 2007 VA treatment record reflects the history that a cardiologist told him he had microvascular disease relating to his diabetes. A July 2007 VA examination record reflects the Veteran's two year history of chest pain at night. The Veteran reported that a cardiologist told him he had "some microvascular disease of his heart due to his diabetes." After examination, the examiner diagnosed chest pain, diagnosed as microvascular disease of the heart without any physical findings, without residual. The examiner opined that "without any specific findings, it [was] less likely as not [that the microvascular disease] was caused by or the result of" diabetes." A February 2010 VA examination record reflects the Veteran's history recurring chest pain since approximately 2005. After examination, the examiner diagnosed recurrent right chest costochondritis without any evidence of ischemic heart disease. A June 2012 VA examination record reflects the examiner's determination that there was no objective evidence of a microvascular condition; rather, the reported chest pains were the result of recurrent costochondritis. A June 2013 medical opinion from a VA physician reflects a determination that there was "no current evidence that the Veteran has microvascular disease based upon history, normal physical exam, normal METS by interview, the normal cardiac performance of multiple studies, including echocardiogram, and the absence of ischemic heart disease by subjective symptoms or exam including MUGA and Cardiolite Stress test." Service connection is not warranted for microvascular disease. The Board has carefully reviewed the evidence of record but finds that there is no probative evidence that the Veteran has had microvascular disease at any point during any part of the appellate period. The Board acknowledges that the Veteran has reported that he was diagnosed with microvascular disease. The medical records does not corroborate the Veteran's history of a diagnosis, however; instead, the record indicates that the cardiologist determined it the "possibility" of microvascular disease could not be excluded and that subsequent physicians determined that the Veteran does not have microvascular disease. Although the Veteran is competent to report a contemporary diagnosis, the Board finds the Veteran's history of a diagnosis is not probative evidence that he has microvascular disease based on the absence of a definitive medical finding of microvascular disease and the lack of a history from the Veteran of any non-VA treatment which could account for the reported diagnosis. The Board acknowledges that the 2007 VA examiner reported a diagnosis of "chest pain, diagnosed as microvascular disease of the heart." The record indicates that the examiner rendered that diagnosis based solely on the Veteran's history of a past diagnosis, however, because the examiner added that there were no physical findings or evidence of a residual of microvascular disorder. Because the Board finds the Veteran's history of a diagnosis is not probative, the "diagnosis" is not probative evidence of the existence of microvascular disease. See Kowalski v. Nicholson, 19 Vet. App. 171 (2005); Coburn v. Nicholson, 19 Vet. App. 427 (2006). In sum, there is no probative evidence of the disorder that is claimed by the Veteran as is required for service connection. See McLain v. Nicholson, 21 Vet. App. 319 (2007). Thus, service connection is not warranted; the claim is denied. Squamous Cell Carcinoma August and September 1970 service treatment records reflect treatment for miliaria. A November 1970 treatment record indicates that the Veteran's skin had features consistent with sun exposure. The February 1971 separation examination record reflects normal clinical findings for the skin and the Veteran's history that he was in "good condition." A July 2005 treatment record indicates that the Veteran had a lesion on the left temporal region, which was possibly actinic keratosis. Biopsy revealed actinic keratosis with transition to squamous cell carcinoma. See July and August 2005 non-VA medical records. A June 2012 VA examination reflects the examiner's determination that the Veteran had miliaria of the face in August 1970 and squamous cell cancer of the face in October 2005. The examiner found the service treatment records were negative for skin cancer. The Veteran reported "nearly constant sun exposure during service in Vietnam that may have been a factor for his developing" squamous cell cancer. The Veteran indicated that he currently wore a big hat while out in the sun. The examiner determined that it was less likely than not that squamous cell carcinoma was incurred in or aggravated by the Veteran's service. The examiner explained that the squamous cell carcinoma was diagnosed 34 years after discharge from service which accounted for more years of sun exposure outside of service than during service. The examiner added that outside of sun exposure, there were multiple factors for increasing the risk of squamous cell carcinoma, including age, smoking, skin type, and ethnicity. The examiner noted that the Veteran had miliaria during service. The examiner believed the miliaria, which he noted was alternately known as heat rash, resolved, however. Service connection is not warranted for squamous cell carcinoma. Initially, the Board notes that the evidence does not suggest that the squamous cell carcinoma was present in service. The service treatment and examination records reflect no histories or findings of squamous cell carcinoma, and the first evidence of squamous cell carcinoma dates many years after separation from service. See Maxson v. Gober, 230 F.3rd. 1330, 1333 (Fed. Cir. 2000). Furthermore, although competent to do so, the Veteran has not reported being assessed with squamous cell carcinoma during service or having symptoms suggestive of squamous cell carcinoma during service. Additionally, the preponderance of the evidence does not suggest that the squamous cell carcinoma is related to service. The Board acknowledges that the record includes competent evidence of in-service treatment for a skin condition, miliaria. A VA examiner has opined that the miliaria resolved, however, and there is no evidence of a connection between the conditions: the competent medical and lay evidence does not indicate that the conditions are related, to include that they affected the same area, and there are no medical findings or studies indicative of a possible relationship between miliaria and squamous cell carcinoma. The Board further acknowledges that the record documents in-service sun exposure and that sun exposure is a cause of squamous cell carcinoma. The Veteran has not alleged that his only significant sun exposure was during service, however - he has not alleged that he avoided sun exposure as best as possible since discharge - and based on the evidence of other risk factors, and the VA examiner's probative opinion that the squamous cell carcinoma was less likely than not related to the in-service sun exposure, the Board finds the preponderance of the evidence does not suggest that the squamous cell carcinoma is related to in-service sun exposure . See Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 304 (2008). Finally, the Board acknowledges that the Veteran believes the squamous cell carcinoma was the result of in-service herbicide exposure. VA regulations provide presumptive service connection for certain diseases for veterans shown to be exposed to an herbicide agent during active military service. 38 C.F.R. § 3.309(e). The record indicates that the Veteran served in Vietnam; as such, he is presumed exposed to herbicide agents. 38 C.F.R. § 3.307(a)(6). Squamous cell carcinoma is not is a disease presumptively associated with exposure to herbicide agents under VA regulations, however; in fact, the Secretary of VA has specifically determined that skin cancer (of the melanoma, basal, and squamous cell type) is not associated with exposure to herbicide agent for purposes of the presumption. See 72 Fed. Reg. 32,395 (June 12, 2007) (emphasis added). As such, the presumption of service connection is not for application in this case. A claimant may still establish service connection with proof of actual direct causation by in-service exposure to an herbicide agent. See Combee v. Brown, 34 F. 3d 1039, 1042 (Fed. Cir. 1994); Stefl v. Nicholson, 21 Vet. App. 120 (2007). The medical evidence does not suggest such a link, however, and the Veteran is not competent to determine such a link exists: that is a determination that requires specialized medical knowledge. See Jandreau, 492 F.3d at 1376-77; Davidson, 581 F.3d at 1316. In the absence of probative evidence of a link to service (either through date of onset or causation), service connection is not warranted; the Veteran's claim is therefore denied. Erectile Dysfunction A July2006 VA treatment record reflects the Veteran's history of erectile dysfunction for "some time." The Veteran was diagnosed with impotence of organic origin. A July 2007 VA examination record reflects the Veteran's history of erectile dysfunction for 18 months. The examiner diagnosed erectile dysfunction. The examiner reported that he was unable to resolve whether the erectile dysfunction was caused by or the result of the diabetes without resorting to mere speculation. A June 2012 VA examination record indicates that the Veteran was diagnosed with erectile dysfunction in May 2006. The examiner explained that May 2006 VA treatment record documented low testosterone levels, which were treated with Levitra. The examiner opined that the etiology of the erectile dysfunction was multifactoral. The examiner believed it was a natural effect of aging as well as the result of testosterone deficiency, hypertension, hyperlipedemia, obesity, and history of alcohol and tobacco use. The examiner explained that because the erectile dysfunction was diagnosed at approximately the same time as the diabetes, diabetes was not likely an etiological factor. The examiner added that the erectile dysfunction was less likely than not etiologically related to service or related to the service-connected diabetes. The examiner explained that the erectile dysfunction was diagnosed at approximately the same time as the diabetes and there were multiple other facts for increasing the risk of erectile dysfunction, including aging, testosterone deficiency, hypertension, hyperlipedemia, obesity, and history of tobacco and alcohol use. The examiner added that the preponderance of the medical evidence shows that after age 55, the vast majority of individuals have erectile dysfunction due to natural age-related degeneration of the male organs, that there were multiple factors for increasing the risk of erectile dysfunction, and that it was not possible to determine the precise percentage each risk factor played. A January 2013 medical opinion from a VA physician reflects a determination that it was less likely as not that erectile dysfunction was caused or aggravated by the service-connected diabetes. The physician explained that the fact that the erectile dysfunction was diagnosed at the same time as the diabetes argued against it having been caused or aggravated by diabetes. The physician added that the Veteran had a "host of identified risk factors for erectile dysfunction that are not related to his military service." The physician added that a recent VA examination showed that the Veteran's diabetes was well-controlled with no complications or loss of function. Service connection is not warranted for erectile dysfunction. Initially, the Board notes that the competent and probative evidence does not suggest that erectile dysfunction began in service. The service treatment and examination records reflect no histories or findings suggestive of erectile dysfunction, and the first evidence of it dates many years after separation from service. See Maxson, 230 F.3rd. at 1333. Furthermore, although competent to do so, the Veteran has not reported having symptoms indicative of erectile dysfunction during service. Additionally, the competent and probative evidence does not suggest that the erectile dysfunction is related to service, though it does include probative opinions from VA physicians that it is not related to service. See Nieves-Rodriguez, 22 Vet. App. at 304. The Board acknowledges that the Veteran believes the erectile dysfunction is the result of in-service herbicide exposure. Erectile dysfunction is not is a disease presumptively associated with exposure to herbicide agents under VA regulations, however, and the competent evidence does not otherwise suggest that the erectile dysfunction is related to herbicide exposure: there is no medical finding of such a link and the Veteran is not shown to possess the specialized medical knowledge necessary to make such a determination. See Jandreau, 492 F.3d at 1376-77; Davidson, 581 F.3d at 1316. The preponderance of the competent and probative evidence also does not suggest that the erectile dysfunction is secondary to the service-connected diabetes. The record does not include any medical findings indicative of such a link. It does include opinions from VA physicians that the erectile dysfunction was not caused or aggravated by diabetes, and the Board finds the opinions are highly probative as they are based on a detailed rationale. See Nieves-Rodriguez, 22 Vet. App. at 304. The Board acknowledges that the Veteran has reported that he was told by a medical practitioner that his erectile dysfunction was secondary to his diabetes. The record does not include any corroborative medical findings, however, and although the Veteran is competent to report what he was told, the Board finds the Veteran's history standing alone is less probative than the VA physicians' determinations that the erectile dysfunction was not caused or aggravated by the service-connected diabetes. The Board further acknowledges that the Veteran believes the VA physicians' rationale for why his diabetes did not cause his erectile dysfunction is wrong because he believes he would have been diagnosed with diabetes earlier if he had been tested earlier, because he had the symptoms of diabetes for "years." The VA physicians' opinions were not based solely on the date of the diagnosis of the diabetes, however; rather, the opinions were based on the evidence that the Veteran had several risk factors for erectile dysfunction. Thus, the Board finds the opinions retain probative value, even if the Veteran's assertion is considered probative. In sum, the preponderance of the probative evidence does not suggest that the erectile dysfunction is related to service (either through date of onset or causation) or secondary to the service-connected diabetes (either through causation or aggravation). As such, service connection is not warranted; the Veteran's claim is therefore denied. Notice and Assistance Upon receipt of a complete or substantially complete application for benefits and prior to an initial unfavorable decision on a claim by an agency of original jurisdiction, VA is required to notify the appellant of the information and evidence not of record that is necessary to substantiate the claim. See 38 U.S.C.A. § 5103(a); 38 C.F.R. § 3.159; Pelegrini v. Principi, 18 Vet. App. 112 (2004); Quartuccio v. Principi, 16 Vet. App. 183 (2002); Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006). The notice should also address the rating criteria or effective date provisions that are pertinent to the appellant's claim. Dingess v. Nicholson, 19 Vet. App. 473 (2006). With respect to the claim of service connection for squamous cell carcinoma, substantially compliant notice was sent in September 2005 and April 2006, and the claim was readjudicated in an August 2006 statement of the case and the supplemental statements of the case. Mayfield, 444 F.3d at 1333. With respect to the claims of service connection for microvascular disease and erectile dysfunction, the RO provided the appellant pre-adjudication notice by letter dated in February 2007. Furthermore, VA has obtained service treatment records, assisted the appellant in obtaining evidence, afforded the appellant examinations, obtained probative medical opinions as to the whether there is a link (either causative, chronological, or due to aggravation) between the conditions and service and the service-connected diabetes, and afforded the appellant the opportunity to give testimony. All known and available records relevant to the issue on appeal have been obtained and associated with the appellant's claims file, including those associated with the benefits awarded by the Social Security Administration, and the appellant has not contended that there are outstanding, available records. Finally, the Board is satisfied that there has been substantial compliance with the remand directives issued in the previous Board decisions: VA obtained the service clinical records and opinions with adequate rationale for each posed question. See Dyment v. West, 13 Vet. App. 141, 146-47 (1999), aff'd, Dyment v. Principi, 287 F.3d 1377 (2002). VA has substantially complied with the notice and assistance requirements and the appellant is not prejudiced by a decision on the claims at this time. ORDER Service connection for microvascular disease is denied. Service connection for squamous cell carcinoma is denied. Service connection for erectile dysfunction is denied. ____________________________________________ L. M. BARNARD Acting Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs